1997 Minnesota Statutes

CHAPTER 114C. Environmental regulatory innovations

     114C.01 Policy. 

    The legislature recognizes that Minnesota's existing 
 environmental laws play a critical role in protecting the 
 environment.  However, the legislature finds that environmental 
 protection could be further enhanced by authorizing innovative 
 advances in environmental regulatory methods.  It is the policy 
 of the legislature that Minnesota should develop environmental 
 regulatory methods that: 

    (1) encourage facility owners and operators to assess the 
 pollution they emit or cause, directly and indirectly, to the 
 air, water, and land; 

    (2) encourage facility owners and operators to innovate, 
 set measurable and verifiable goals, and implement the most 
 effective pollution prevention, source reduction, or other 
 pollution reduction strategies for their particular facilities, 
 while complying with verifiable and enforceable pollution 
 limits; 

    (3) encourage superior environmental performance and 
 continuous improvement toward sustainable levels of resource 
 usage and minimization of pollution discharges; 

    (4) reward facility owners and operators that reduce 
 pollution to levels below what is required by applicable law; 

    (5) consolidate into one permit environmental requirements 
 that are currently included in different permits, sometimes 
 issued by different state or local agencies; 

    (6) reduce the time and money spent by agencies and 
 facility owners and operators on paperwork and other 
 administrative tasks that do not benefit the environment; 

    (7) increase public participation and encourage stakeholder 
 consensus in the development of innovative environmental 
 regulatory methods and in monitoring the environmental 
 performance of projects under this chapter; 

    (8) encourage groups of facilities and communities to work 
 together to reduce pollution to levels below what is required by 
 applicable law; 

    (9) provide reasonable technical assistance to facilitate 
 meaningful stakeholder participation; and 

    (10) increase levels of trust and communication among 
 agencies, regulated parties, and the public. 

    HIST: 1996 c 437 s 1 

     114C.02 Definitions. 

    Subdivision 1.    Scope.  For the purposes of this 
 chapter, the definitions in this section have the meanings given 
 them. 

    Subd. 2.    Pollution prevention.  "Pollution prevention"
 has the meaning given in section 115D.03. 

    Subd. 3.    Source reduction.  "Source reduction" has 
 the meaning given in section 115A.03. 

    Subd. 4.    Stakeholders.  "Stakeholders" means citizens 
 in the communities near the project site, facility workers, 
 government representatives, business groups, educational groups, 
 environmental groups, or other Minnesota citizens or public 
 interest groups. 

    Subd. 5.    State or local agency.  "State or local 
 agency" means any agency, department, board, bureau, office or 
 other instrumentality of the state, any political subdivision of 
 the state, any public corporation, any municipality, and any 
 other local unit of government. 

    HIST: 1996 c 437 s 2 

     114C.10 Establishment of Minnesota XL permit project. 

    Subdivision 1.    Project.  The pollution control agency 
 is authorized to establish and implement a permit project under 
 sections 114C.10 to 114C.19.  The purpose of the project is to 
 work toward the policy goals listed in section 114C.01 by 
 issuing and studying the effect of permits that require 
 permittees to reduce overall levels of pollution below what is 
 required by applicable law, but which grant greater operational 
 flexibility than current law would otherwise allow.  Permits 
 issued under this project shall be called Minnesota XL permits. 

    Subd. 2.    Report to legislature.  By January 15, 1998, 
 the commissioner of the pollution control agency shall report to 
 the legislature on implementation of the project, the 
 environmental results of the project, and recommendations for 
 future legislation to further the policy of this chapter. 

    HIST: 1996 c 437 s 3 

     114C.11 Minnesota XL permits. 

    Subdivision 1.    Participation in project.  (a) The 
 commissioner of the pollution control agency may solicit 
 requests for participation and shall select the participants in 
 the project based on the policy set forth in section 114C.01 and 
 to satisfy the criteria of subdivisions 2 and 3.  In addition, 
 the commissioner shall select participants that collectively 
 represent a variety of facility types and projects that are 
 expected to reduce air, water, and land pollution.  A power 
 generation facility may not be selected to participate in the 
 project or be issued a Minnesota XL permit unless its proposal 
 includes a plan for significantly reducing mercury emissions. 

    (b) The prospective permittees must be regulated by the 
 agency under chapter 115, chapter 116, or both, and voluntarily 
 submit a proposal for a Minnesota XL permit.  The proposal must 
 address the major pollution impact from the facility or 
 facilities included in the proposal. 

    (c) If, in the course of preparing a Minnesota XL permit 
 for a prospective permittee, the commissioner concludes that the 
 Minnesota XL permit will not sufficiently promote the policy of 
 section 114C.01 or meet the issuance criteria in this section, 
 the commissioner may remove the prospective permittee from the 
 project.  In that event, the commissioner shall provide the 
 prospective permittee with a reasonable amount of time to obtain 
 alternative permits made necessary by removal from the project. 

    Subd. 2.    Minimum criteria for Minnesota XL permit 
 issuance.  The pollution control agency may issue and amend a 
 Minnesota XL permit if the agency finds that the following 
 minimum criteria are met: 

    (1) the permit will facilitate pollution prevention and 
 source reduction activities by the facility and result in 
 significantly lower overall levels of pollution from the 
 facility, its customers, or suppliers than would otherwise be 
 required by applicable laws, without:  (i) increasing the 
 negative impact on the environment, the local community, or 
 worker health and safety; or (ii) transferring pollution impacts 
 into the product; 

    (2) the pollution prevention, source reduction, or other 
 pollution reduction goals are verifiable; 

    (3) the pollution limits contained in the permit are 
 verifiable and enforceable; 

    (4) the stakeholder group has been involved through a 
 decision-making process that seeks consensus in the design of 
 the permit and will have the opportunity for continued 
 involvement in the implementation and evaluation of it; 

    (5) the permittee agrees to make available information that 
 it gives the agency about the XL project, except information 
 that is nonpublic under chapter 13 or confidential under section 
 116.075, to the stakeholder group in a format that is easily 
 understood; 

    (6) the permittee agrees to provide an assessment of the 
 success of the project in reducing the time and money spent at 
 the facility on paperwork and other administrative tasks that do 
 not directly benefit the environment; 

    (7) the permittee, the pollution control agency, and other 
 state and local agencies are likely to expend less time and 
 resources over the long term to administer the Minnesota XL 
 permit than other types of permits; and 

    (8) the project is not inconsistent with the federal 
 government's Project XL guidance or any federal laws governing 
 the Project XL program. 

    Subd. 3.    Additional criteria.  In addition to the 
 minimum criteria in subdivision 2, the commissioner in selecting 
 participants and the agency in issuing or amending a Minnesota 
 XL permit, must find that the permit meets one or more of the 
 following criteria: 

    (1) the permit allows the facility owner or operator as 
 much operational flexibility as can be reasonably provided 
 consistent with the need to achieve the anticipated pollution 
 reduction and ensure the verifiability and enforceability of the 
 permit's pollution limits; 

    (2) the permit provides facility-wide pollution limits 
 where practical, verifiable, and enforceable; 

    (3) the permit regulates air, water, and land pollution 
 effects, direct and indirect; 

    (4) the permit encourages pollution prevention or source 
 reduction; 

    (5) the permit encourages innovation in the design, 
 production, distribution, use, reuse, recycling, or disposal of 
 a product such that air, water, and land pollution impacts are 
 minimized over the life cycle of a product; 

    (6) the permit reduces the emission of nontoxic pollutants 
 regulated under applicable law; 

    (7) the permit reduces indoor chemical exposure, water use, 
 or energy use; 

    (8) the permit minimizes transfer, direct and indirect, of 
 pollution between the air, water, and land; 

    (9) the regulatory techniques employed in the permit have 
 potential application to other permittees; 

    (10) the permittee agrees to measure and demonstrate the 
 success of the Minnesota XL permit in addition to the assessment 
 in subdivision 2, clause (6), such as tracking pollution 
 prevention incentives and initiatives or using surveys to 
 measure any attitudinal changes by facility personnel or the 
 public; 

    (11) the permit is multiagency, under subdivision 4. 

    Subd. 4.    Multiagency Minnesota XL permits.  The 
 pollution control agency may include or vary in a Minnesota XL 
 permit the related requirements of other state or local 
 agencies, if the pollution control agency, the prospective 
 permittee, and the other state or local agency find that it is 
 reasonable to do so.  Notwithstanding conflicting procedural 
 requirements, the other agencies may exercise their related 
 permitting, licensing, or other approval responsibilities by 
 including their requirements in the Minnesota XL permit.  The 
 pollution control agency may not include or vary the related 
 requirements of other state or local agencies in a Minnesota XL 
 permit unless the other agencies agree to sign the permit.  The 
 Minnesota XL permit shall identify any requirement, the source 
 of which is not the pollution control agency, and identify the 
 source agency.  The commissioner of the pollution control agency 
 and the other agencies may agree to share inspection or other 
 responsibilities related to the Minnesota XL permit.  For 
 purposes of this subdivision, requirements are related if they 
 have a direct or indirect bearing on environmental protection or 
 indoor chemical exposure. 

    Subd. 5.    Environmental policy act.  Sections 114C.10 
 to 114C.19 do not supersede the requirements of chapter 116D and 
 the rules adopted under it. 

    Subd. 6.    Plans and progress reports under chapters 115D 
 and 115E.  A permittee complies with the plan content and 
 timing requirements of sections 115D.07, 115E.04, and 115E.045 
 if the Minnesota XL permit requires the permittee to include in 
 an overall environmental management plan satisfactory 
 alternative information.  A permittee complies with the progress 
 report content and timing requirements of section 115D.08 if the 
 Minnesota XL permit requires the permittee to include in its 
 overall reporting requirements satisfactory alternative 
 information, and specifies a schedule for submitting the 
 information. 

    HIST: 1996 c 437 s 4 

     114C.12 Issuance, amendment, and revocation procedure. 

    Subdivision 1.    Stakeholder group.  The commissioner 
 of the pollution control agency shall: 

    (1) ensure that the stakeholder group for each Minnesota XL 
 permit includes members that represent diversity of stakeholders 
 that emphasizes participation by members from the local 
 community but does not exclude other stakeholders; 

    (2) ensure that a decision-making process that seeks 
 consensus is in place; and 

    (3) ensure that reasonable technical assistance is provided 
 to facilitate stakeholder understanding of the design, 
 implementation, and evaluation of each Minnesota XL permit. 

    Subd. 2.    Unified permit action and variance procedure. 
  The pollution control agency may issue, amend, or revoke 
 Minnesota XL permits using the single permit and variance 
 procedure in subdivision 4, notwithstanding conflicting state or 
 local procedural requirements.  If a Minnesota XL permit 
 includes variances from applicable state rules or local 
 ordinances or local regulations, the issuance or amendment of 
 the permit constitutes adoption of a variance to such state 
 rules or local ordinances or local regulations if the Minnesota 
 XL permit identifies, in general terms, any state rules or local 
 ordinances or local regulations being varied. 

    Subd. 3.    Variance standards.  Although subdivision 2 
 establishes the procedure for granting variances in a Minnesota 
 XL permit, the agency in deciding whether to grant a variance 
 must apply the substantive standards for granting a variance 
 applicable to the state rule, local ordinance, or local 
 regulation being varied or find that the variance either: 

    (1) promotes reduction in overall levels of pollution 
 beyond what is required by applicable law, consistent with the 
 purposes of this chapter; or 

    (2) reduces the administrative burden on state or local 
 agencies or the permittee, provided that alternative monitoring, 
 testing, notification, recordkeeping, or reporting requirements 
 will provide the information needed by the state or local agency 
 to ensure compliance. 

    Subd. 4.    Procedure.  (a) The pollution control agency 
 must provide at least 30 days for public comment on the agency's 
 proposed issuance, amendment, or revocation of a Minnesota XL 
 permit.  Before the start of the public comment period, the 
 commissioner of the pollution control agency must prepare a 
 draft permit, permit amendment, or notice of permit revocation 
 and a fact sheet that: 

    (1) briefly describes the principal facts and the 
 significant factual, legal, methodological, and policy questions 
 considered by the commissioner and the commissioner's proposed 
 determination; 

    (2) briefly describes how the permit action proposed by the 
 commissioner meets the criteria of section 114C.11 and furthers 
 the policy of section 114C.01; and 

    (3) identifies any rules that would be varied by the 
 commissioner's proposed permit action. 

    (b) The commissioner shall prepare a public notice of the 
 proposed permit action that: 

    (1) briefly describes the facility or activity that is the 
 subject of the proposed permit action; 

    (2) states the commissioner's proposed permit action and 
 whether it includes a variance of any state rules or local 
 ordinances or local regulations; 

    (3) identifies an agency person to contact for additional 
 information; 

    (4) states that the draft permit, permit amendment, or 
 notice of revocation and the fact sheet are available upon 
 request; 

    (5) states that comments may be submitted to the agency by 
 the public during the comment period; and 

    (6) describes the procedures that the agency will use to 
 make a final decision, including how persons may request public 
 informational meetings, contested case hearings, and appearances 
 at public meetings of the agency.  The agency or the 
 commissioner may order a public informational meeting if the 
 comments received during the comment period demonstrate 
 considerable public interest in the proposed permit action.  

    (c) The commissioner shall mail the public notice to the 
 applicant, all persons who have registered with the agency to 
 receive notice of permit actions, and to any interested person 
 upon request.  The commissioner shall make a copy of the public 
 notice available at the agency's main office and the applicable 
 regional office.  The commissioner shall circulate the public 
 notice in the geographic area of the facility or activity 
 subject to the proposed permit action, either by posting in 
 public buildings, by publication in local newspapers or 
 periodicals, by publication in the State Register, or by an 
 alternate method deemed by the commissioner to be more effective 
 such as an electronic bulletin board or mail service. 

    (d) The commissioner shall have the discretion to issue, 
 amend, or revoke a Minnesota XL permit if: 

    (1) the commissioner has included in the public notice 
 information notifying persons of their right to request that the 
 decision to issue, amend, or revoke the Minnesota XL permit be 
 presented to the agency; and 

    (2) neither the permit applicant, a member of the 
 stakeholders group, or any person commenting on the proposed 
 issuance, amendment, or revocation of the Minnesota XL permit 
 has requested, during the comment period, that the decision be 
 made by the agency or requested a contested case hearing. 

    If the conditions in clauses (1) and (2) have not been met, 
 or if, prior to the commissioner's decision, one or more members 
 of the agency request that the decision to issue, amend, or 
 revoke the Minnesota XL permit be made by the agency, then the 
 agency shall have the sole authority to make that decision. 

    Subd. 5.    Permit revocation.  (a) The pollution 
 control agency may revoke a Minnesota XL permit if requested by 
 the permittee or if the agency finds that: 

    (1) the permittee is in significant noncompliance with the 
 Minnesota XL permit or with applicable law; 

    (2) the permittee is not able, or has shown a lack of 
 willingness, to comply with future pollution reduction deadlines 
 in the Minnesota XL permit; 

    (3) the permitted facility or activity endangers human 
 health or the environment and the danger cannot be removed by an 
 amendment to the Minnesota XL permit; or 

    (4) after proper notification and a reasonable amount of 
 time has passed, the permittee has not satisfactorily addressed 
 a substantive issue raised by a majority of members of the 
 stakeholders group. 

    (b) If the agency revokes a Minnesota XL permit, it shall 
 in its revocation order: 

    (1) delay any compliance deadlines that had been varied by 
 the Minnesota XL permit if the agency finds it necessary to 
 provide the permittee a reasonable amount of time to obtain 
 alternative permits under chapters other than this chapter and 
 under local ordinances and regulations, and to achieve 
 compliance; and 

    (2) establish practical interim requirements to replace the 
 requirements of the Minnesota XL permit that the agency finds 
 the permittee will not be able to comply with between the time 
 of permit revocation and issuance of the alternative permits, 
 provided that such interim requirements shall not allow 
 pollution from the facility in excess of that allowed by 
 applicable law at the time the permit was issued. 

    (c) The permittee shall comply with the agency's order and 
 with all requirements of the Minnesota XL permit for which 
 alternative interim requirements have not been established in 
 the agency's order, until the applicable alternative permits 
 have been issued. 

    HIST: 1996 c 437 s 5 

     114C.13 Fees. 

    Minnesota XL permittees shall continue to be subject to the 
 same fee structures they would have been subject to if they had 
 obtained the permits that the Minnesota XL permit replaces.  

    HIST: 1996 c 437 s 6 

     114C.14 Enforcement and judicial review. 

    Subdivision 1.    Enforcement.  A Minnesota XL permit 
 may be enforced in any manner provided by law for the 
 enforcement of permits issued under chapter 115 or 116, except 
 for requirements of other state or local agencies that are 
 included in the permit and except that the defense in section 
 609.671, subdivision 14, also applies to any misdemeanor action 
 taken under section 115.071, subdivision 2, paragraph (a).  
 Requirements of other state or local agencies may be enforced 
 using whatever authorities would be available if the 
 requirements had been included in permits, licenses, or other 
 approvals issued directly by the other agencies.  The other 
 agencies shall consult with the commissioner of the pollution 
 control agency prior to taking any action enforcing a Minnesota 
 XL permit. 

    Subd. 2.    Judicial review.  Any person aggrieved by a 
 final decision of the pollution control agency to issue, amend, 
 or revoke a Minnesota XL permit may obtain judicial review 
 pursuant to sections 14.63 to 14.69. 

    HIST: 1996 c 437 s 7 

     114C.19 Variances that promote pollution reductions or 
  reduce unnecessary administrative burden. 

    In addition to the grounds for granting a variance set 
 forth in section 116.07, subdivision 5, the pollution control 
 agency may grant variances from its rules in order to: 

    (1) promote reduction in overall levels of pollution beyond 
 what is required by applicable law, consistent with the purposes 
 of this chapter; or 

    (2) reduce the administrative burden on the agency or the 
 permittee, provided that alternative monitoring, testing, 
 notification, recordkeeping, or reporting requirements will 
 provide the information needed by the agency to ensure 
 compliance. 

    HIST: 1996 c 437 s 8 

     114C.20 Environmental improvement pilot program 
  established. 

    An environmental improvement pilot program is established 
 to promote voluntary compliance with environmental requirements. 

    HIST: 1995 c 168 s 8; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.21 Definitions. 

    Subdivision 1.    Applicability.  As used in sections 
 114C.20 to 114C.31, the terms defined in this section have the 
 meanings given. 

    Subd. 2.    Agency.  "Agency" means the pollution 
 control agency. 

    Subd. 3.    Environmental requirement.  "Environmental 
 requirement" means a requirement in: 

    (1) a law administered by the agency, a rule adopted by the 
 agency, a permit or order issued by the agency, an agreement 
 entered into with the agency, or a court order issued pursuant 
 to any of the foregoing; or 

    (2) an ordinance or other legally binding requirement of a 
 local government unit under authority granted by state law 
 relating to environmental protection, including solid and 
 hazardous waste management. 

    Subd. 4.    Environmental audit; audit.  "Environmental 
 audit" or "audit" means a systematic, documented, and objective 
 review by a regulated entity of one or more facility operations 
 and practices related to compliance with one or more 
 environmental requirements and, if deficiencies are found, a 
 plan for corrective action.  The final audit document must be 
 designated as an "audit report" and must include the date of the 
 final written report of findings for the audit. 

    Subd. 5.    Commissioner.  "Commissioner" means the 
 commissioner of the pollution control agency. 

    Subd. 6.    Facility.  "Facility" means all buildings, 
 equipment, structures, and other stationary items that are 
 located on a single site or on contiguous or adjacent sites and 
 that are owned or operated by the same person. 

    Subd. 7.    Local governmental unit.  "Local 
 governmental unit" means a county, a statutory or home rule 
 charter city, a town, a sanitary district, or the metropolitan 
 area. 

    Subd. 8.    Major facility.  "Major facility" means an 
 industrial or municipal wastewater discharge major facility as 
 defined in rules of the agency; a feedlot that is permitted for 
 1,000 or more animal units; a large quantity hazardous waste 
 generator as defined in rules of the agency; a hazardous waste 
 treatment, storage, or disposal facility that is required to 
 have a permit under the federal Resource Conservation and 
 Recovery Act, United States Code, title 42, section 6925; a 
 major stationary air emission source as defined in rules of the 
 agency; an air emission source that emits 50 or more tons per 
 year of any air pollutant regulated under rules of the agency; 
 or an air emission source that emits 75 tons or more per year of 
 all air pollutants regulated under rules of the agency. 

    Subd. 9.    Pollution prevention.  "Pollution prevention"
 means the elimination or reduction at the source of the use, 
 generation, or release of pollutants. 

    Subd. 10.    Regulated entity.  "Regulated entity" means 
 a public or private organization that is subject to 
 environmental requirements. 

    Subd. 11.    Self-evaluation.  "Self-evaluation" means a 
 systematic, documented, and objective review by a regulated 
 entity of one or more facility operations and practices related 
 to compliance with one or more environmental requirements, based 
 upon an evaluation form prescribed or approved by the 
 commissioner. 

    Subd. 12.    State.  "State" means the pollution control 
 agency, the attorney general, and all local governmental units. 

    HIST: 1995 c 168 s 9; 1996 c 359 s 3-5; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.22 Audits or self-evaluations. 

    Subdivision 1.    Qualification to participate in program. 
  For a facility to qualify for participation in the 
 environmental improvement program, more than one year must have 
 elapsed since the initiation of an enforcement action that 
 resulted in the imposition of a penalty involving the facility.  
 In addition, a regulated entity must: 

    (1) conduct an environmental audit or a self-evaluation; 

    (2) for a major facility, prepare a pollution prevention 
 plan and submit progress reports in accordance with sections 
 115D.07 to 115D.09; 

    (3) for a facility that is not a major facility, examine 
 pollution prevention opportunities at the facility; and 

    (4) submit a report in accordance with subdivision 2. 

    Subd. 2.    Report.  A regulated entity must submit a 
 report to the commissioner, and to a local governmental unit if 
 the report identifies a violation of an ordinance enacted by the 
 local governmental unit or of another legally binding 
 requirement imposed by the local governmental unit, within 45 
 days after the date of the final written report of findings for 
 an environmental audit or within 45 days after the completion of 
 a self-evaluation.  The report must contain: 

    (1) a certification by the owner or operator of the 
 facility that the applicable requirements of subdivision 1, 
 clauses (1) to (4), have been met; 

    (2) a disclosure of all violations of environmental 
 requirements that were identified in the environmental audit or 
 self-evaluation and a brief description of proposed actions to 
 correct the violations; 

    (3) a commitment signed by the owner or operator of the 
 facility to correct the violations as expeditiously as possible 
 under the circumstances; 

    (4) if more than 90 days will be required to correct the 
 violations, a performance schedule that identifies the time that 
 will be needed to correct the violations and a brief statement 
 of the reasons that support the time periods set out in the 
 performance schedule; and 

    (5) a description of the steps the owner or operator has 
 taken or will take to prevent recurrence of the violations. 

    HIST: 1995 c 168 s 10; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.23 Review of performance schedules. 

    (a) A reasonable performance schedule prepared under 
 section 114C.22, subdivision 2, clause (4), must be approved by 
 the commissioner.  In reviewing the reasonableness of a 
 performance schedule, the commissioner shall take into account 
 information supplied by the regulated entity, any public 
 comments, and information developed by agency staff.  The 
 decision about whether a performance schedule is reasonable must 
 be based on the following factors: 

    (1) the nature of the violations; 

    (2) the environmental and public health consequences of the 
 violations; 

    (3) the economic circumstances of the facility; 

    (4) the availability of equipment and material; and 

    (5) the time needed to implement pollution prevention 
 opportunities as an alternative to pollution control approaches 
 to remedying the violations.  Information submitted to the 
 commissioner that is trade secret information, as that term is 
 defined in section 13.37, is nonpublic data under chapter 13. 

    (b) In the event of a dispute over approval of the 
 performance schedule, the regulated entity may request a hearing 
 under the procedures in Minnesota Rules, parts 1400.8510 to 
 1400.8612.  A performance schedule may be amended by written 
 agreement between the commissioner and the regulated entity. 

    HIST: 1995 c 168 s 12; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.24 Enforcement. 

    Subdivision 1.    Deferred enforcement.  The state must 
 defer for at least 90 days enforcement of an environmental 
 requirement against the owner or operator of a facility if a 
 report that meets the requirements of section 114C.22, 
 subdivision 2, has been submitted to the commissioner.  If the 
 report includes a performance schedule, and the performance 
 schedule is approved under section 114C.23, the state must defer 
 enforcement for the term of the approved performance schedule 
 unless the owner or operator of the facility fails to meet an 
 interim performance date contained in the schedule. 

    Subd. 2.    Penalties waived.  If, within 90 days after 
 the report required in section 114C.22, subdivision 2, is 
 received by the commissioner or within the time specified in an 
 approved performance schedule, the owner or operator of a 
 facility corrects the violations identified in the audit or 
 self-evaluation and certifies to the commissioner that the 
 violations have been corrected, the state may not impose or 
 bring an action for any administrative, civil, or criminal 
 penalties against the owner or operator of the facility for the 
 reported violations. 

    Subd. 3.    Exceptions.  Notwithstanding subdivisions 1 
 and 2, the state may at any time bring: 

    (1) a criminal enforcement action against any person who 
 knowingly commits a violation under section 609.671; 

    (2) a civil or administrative enforcement action, which may 
 include a penalty, under section 115.071 or 116.072, against the 
 owner or operator of a facility if: 

    (i) less than one year has elapsed since the final 
 resolution of a notice of violation, an administrative penalty 
 order, or a civil or criminal lawsuit that resulted in an 
 enforcement action being taken against the owner or operator of 
 a facility for a violation of a requirement that was also shown 
 as having been violated in the report required under section 
 114C.22, subdivision 2; or 

    (ii) a violation caused serious harm to public health or 
 the environment; or 

    (3) the enforcement action is against the owner or operator 
 of a facility to enjoin an imminent threat to public health or 
 the environment. 

    Subd. 4.    Good faith consideration.  If the state 
 finds that one of the conditions in subdivision 3 exists, the 
 state must take into account the good faith efforts of the 
 regulated entity to comply with environmental requirements in 
 deciding whether to pursue an enforcement action, whether an 
 enforcement action should be civil or criminal, and what, if 
 any, penalty should be imposed.  In determining whether the 
 regulated entity has acted in good faith, the state must 
 consider whether: 

    (1) when noncompliance was discovered, the regulated entity 
 took corrective action that was timely under the circumstances; 

    (2) the regulated entity exercised reasonable care in 
 attempting to prevent the violations and ensure compliance with 
 environmental requirements; 

    (3) the noncompliance resulted in significant economic 
 benefit to the regulated entity; 

    (4) prior to implementing the audit or self-evaluation 
 program, the regulated entity had a history of good faith 
 efforts to comply with the environmental requirements; 

    (5) the regulated entity demonstrated good faith efforts to 
 achieve compliance since implementing an environmental auditing 
 or self-evaluation program; and 

    (6) the regulated entity has demonstrated efforts to 
 implement pollution prevention opportunities. 

    Subd. 5.    Violations discovered by the state.  Nothing 
 in sections 114C.20 to 114C.31 precludes the state from taking 
 any enforcement action the state is authorized to take with 
 respect to violations discovered by the state prior to the time 
 a regulated entity has submitted to the commissioner a report 
 that meets the requirements of section 114C.22, subdivision 2. 

    Subd. 6.    False statements.  (a) A person may not 
 knowingly make a false material statement or representation in 
 the report filed in accordance with section 114C.22, subdivision 
 2.  As used in this subdivision, "knowingly" has the meaning 
 given in section 609.671, subdivision 2. 

    (b) A person found to have knowingly made a false material 
 statement or representation shall be subject to the 
 administrative penalties and process set forth in section 
 116.072. 

    HIST: 1995 c 168 s 13; 1996 c 359 s 6-9; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.25 Green star emblem. 

    A regulated entity may display at a facility a "green star" 
 emblem designed by the commissioner if: 

    (1) the regulated entity qualifies for participation in the 
 environmental improvement program under section 114C.22; 

    (2) the regulated entity certifies that all violations that 
 were identified in the audit or self-evaluation of the facility 
 were corrected within 90 days or within the time specified in an 
 approved performance schedule or certifies that no violations 
 were identified in the audit or self-evaluation; and 

    (3) at least one year has elapsed since the final 
 resolution of a notice of violation, an administrative penalty 
 order, or a civil or criminal enforcement action involving the 
 regulated entity.  The emblem may be displayed for a period of 
 two years from the time that the commissioner determines that 
 the requirements of this section have been met. 

    HIST: 1995 c 168 s 14; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.26 Access to documents. 

    Subdivision 1.    Public access.  The state may not 
 request, inspect, or seize a final audit report, draft audit 
 papers, a self-evaluation form, the notes or papers prepared by 
 the auditor or the person conducting the self-evaluation in 
 connection with the audit or self-evaluation, or the internal 
 documents of a regulated entity establishing, coordinating, or 
 responding to the audit or self-evaluation, other than the 
 report required in section 114C.22, subdivision 2, except in 
 accordance with the agency's policy on environmental auditing, 
 as adopted by the agency on January 24, 1995. 

    Subd. 2.    Third-party access.  After receipt by the 
 commissioner of a report that complies with section 114C.22, 
 subdivision 2, the final audit report, draft audit reports, the 
 self-evaluation form, any notes or papers prepared by the 
 auditor or by the person conducting the self-evaluation in 
 connection with the audit or self-evaluation, and the internal 
 documents of a regulated entity establishing, coordinating, or 
 responding to the audit or self-evaluation covered by the report 
 are privileged as to all persons other than the state provided 
 that the regulated entity is in compliance with its commitments 
 under sections 114C.22 and 114C.23. 

    Subd. 3.    Nonwaiver of protections.  Participation by 
 a regulated entity in the environmental improvement program does 
 not waive, minimize, reduce, or otherwise adversely affect the 
 level of protection or confidentiality that exists, under 
 current or developing common or statutory law, with respect to 
 any other documents relating to an environmental audit or 
 self-evaluation. 

    HIST: 1995 c 168 s 15; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.27 No effect on other rights. 

    Sections 114C.20 to 114C.29 do not affect, impair, or alter:

    (1) rights of a regulated entity that chooses not to 
 participate, or is not eligible to participate, in the 
 environmental improvement pilot program; or 

    (2) rights of other persons relative to the matters 
 addressed by the environmental improvement pilot program. 

    HIST: 1995 c 168 s 16; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.28 Reporting required by law. 

    Nothing in sections 114C.20 to 114C.31 alters the 
 obligation of any regulated entity to report releases, 
 violations, or other matters that are required to be reported by 
 state or federal law, rule, permit, or enforcement action. 

    HIST: 1995 c 168 s 17; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.29 Survival of rights and protections. 

    All rights and protections provided under sections 114C.20 
 to 114C.31 shall survive the repeal of those sections with 
 respect to any report filed under section 114C.22, subdivision 
 2, that is submitted before July 1, 1999. 

    HIST: 1995 c 168 s 18; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.

     114C.30 Repealer. 

    Sections 114C.20 to 114C.31 are repealed effective July 1, 
 1999. 

    HIST: 1995 c 168 s 19; 1996 c 359 s 10; 1996 c 437 s 24 

     114C.31 Report. 

    The commissioner, in consultation with the attorney 
 general, shall submit a report to the chairs of the environment 
 and natural resources committees of the senate and the house of 
 representatives by January 15, 1999, that evaluates the 
 effectiveness of the environmental improvement pilot program and 
 recommends whether the program should be extended. 

    HIST: 1995 c 168 s 20; 1996 c 437 s 24 

*   NOTE:  See section 114C.30 for repealer.